State v. Stigall

• Decision Date: 30 October 1985
• Docket Number: No. 13720,13720
• Citation: 700 S.W.2d 851
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Stephen STIGALL, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 851

700 S.W.2d 851

STATE of Missouri, Plaintiff-Respondent, v. Stephen STIGALL, Defendant-Appellant.

No. 13720.

Missouri Court of Appeals,

Southern District,

Division Two.

Oct. 30, 1985.

Rehearing Denied Nov. 21, 1985.

Charles M. Shaw, Shaw, Howlett & Schwartz, Clayton, for defendant-appellant.

John Ashcroft, Atty. Gen., Gary L. Gardner, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

HOGAN, Presiding Judge.

Defendant Steven Stigall was convicted of manufacturing marihuana in violation of § 195.020.1, RSMo Supp.1983. A jury assessed his punishment at imprisonment for a term of five years. The defendant appeals. His assignments of error, slightly paraphrased, are: (1) that the information was fatally defective in that it charged only "manufacturing" marihuana without particularizing the specific act with which the defendant was charged. This is error rendering the information fatally defective, defendant says, because the word "manufacture" as used in § 195.020 is a generic term in light of the extensive meaning given the verb by its definition in § 195.010(21); (2) that the trial court erroneously received several inculpatory statements as declarations against interest; (3) that the State failed to comply with the procedural rules of discovery, to his prejudice, and (4) that the State's Instructions No. 6 and 7 were erroneously defective and incomplete and failed to follow the statute. We affirm.

The sufficiency of the evidence is not directly questioned, but a recital of the facts in brief sketch will, perhaps, clarify the opinion. On September 2, 1983, acting upon the tip of an informant, several police officers detected what they believed to be marihuana plants growing in a garden behind the defendant's residence in Wright County. Later the same day a search warrant was issued by Honorable A.F. Turner, Judge of the Forty-Fourth Judicial Circuit. Thereafter a number of officers went to the defendant's residence to execute the warrant.

When they arrived at the place where defendant lived, the officers found marihuana growing in several places. Some of the plants were growing in a garden; others were found growing in a plantation enclosed by logs. There had been no rainfall in the area and the defendant's yard was extremely dry. Nevertheless, the ground around the marihuana plants was moist, some of the plants had been recently hoed, and some had been mulched.

In all, 865 marihuana plants were recovered from the defendant's property. It was estimated that this number of plants would yield between 1,500 and 2,000 pounds of marihuana with a "street value" of $1,200 to $1,400 per pound. An apparatus suitable for drying marihuana and a white sheet containing processed marihuana were found in the defendant's house. The evidence abundantly supports the judgment of conviction. If, as the defendant suggests, the exception excluding preparation or compounding a controlled substance "by an individual for his own use," created by § 195.010(21), applies to the manufacture of marihuana, then production in the quantity involved here permits the inference that the marihuana was grown and processed for sale or distribution, not for the defendant's personal use. United States v. Scales, 464 F.2d 371 (6th Cir.1972); Miller v. State, 155 Ga.App. 399, 270 S.E.2d 822 (1980); State v. Parsons, 213 Neb. 347, 328 N.W.2d 795 (1983).

The defendant's assignment of error attacking the information is verbose but the substance of the point is clear. Defendant argues that the word "manufacture" as used in § 195.020.1 is a "generic" term because the word "manufacture" by statutory definition includes "... the production, preparation, propagation, compounding or processing ... of a controlled substance ...," § 195.010(21), and because by statute, "production" "includes the manufacture, planting, cultivation, growing, or harvesting ... of a controlled substance ...." Section 195.010(30). Able and experienced counsel cites State v. Kesterson, 403 S.W.2d 606 (Mo.1966) and State v. Hasler, 449 S.W.2d 881 (Mo.App.1969). Both those cases state and apply the rule that it is usually sufficient to aver the commission of a statutory offense in the language of the statute, but if the statute creating the offense uses generic terms in defining the offense and does not individuate the offense with particularity, then the information must recite the conduct constituting the crime with particularity sufficient to notify the accused of the charge against which he must defend himself. State v. Kesterson 403 S.W.2d at 611[3, 4].

We do not consider the cited cases apposite, but we do find a degree of merit in counsel's arguments. Ordinarily, when a statute provides that a crime may be committed in several different ways, or by differing means, the information must state the way in which the crime was committed. State v. Charity, 619 S.W.2d 366, 367 (Mo.App.1981); State v. Newhart, 503 S.W.2d 62, 67[2-5] (Mo.App.1973). Although the statute denouncing the manufacture of marihuana does not of itself disjunctively describe several acts which may result in the commission of a single offense, the definitions effectively do so by providing that a number of steps in the total process of "manufacture" may be punished as "manufacturing." The statute differs, however, from the statutes considered in Charity and in Newhart in that § 195.020.1 in terms prohibits the manufacture of marihuana without qualification.

The accusatory part of the information filed in this case reads as follows:

"... that on or about the 2nd day of September, 1983, in the County of Wright, State of Missouri, the Defendant knowingly manufactured marihuana, a controlled substance."

The State argues that the information tracks the language of MACH-CR 32.06.12; therefore, under the provisions of Rule 23.01(e), the information should be deemed sufficient. However, in view of the language of MACH-CR 1.00.2 and the ruling in State v. Dixon, 655 S.W.2d 547, 558-59 (Mo.App.1983), we cannot say that the use of a pattern information insulates the charge from all possible objection. Further, as the State points out, in both Lanphear v. State, 574 S.W.2d 40 (Mo.App.1978) and State v. Halliburton, 531 S.W.2d 554 (Mo.App.1975), this court held that an information charging the "sale" of marihuana in the language of § 195.020.1 complied with the requirements of present Rule 23.01(b), even though the word "sale" is defined by § 195.010(32) to include "barter, exchange, or gift, or offer therefor...." In Lanphear, 574 S.W.2d at 41, the court did suggest that the indictment might be subject to a bill of particulars, but that fact did not make the indictment so defective as to deprive the court of jurisdiction. We may also observe that at least one other jurisdiction which has (or had) a controlled substances act very similar to ours has approved an information charging "manufacturing" with a mere reference to the statutory definition, which, of course, furnishes no more factual detail than the information filed in this case. State ex rel. Bell v. County Court for Columbia County, 82 Wis.2d 401, 263 N.W.2d 162 (1978). None of these observations reaches the defendant's claim of prejudice, which must be resolved on general principles.

An information or indictment is held sufficient if it performs three functions: (1) it must contain all the essential elements of the offense set out in the statute, (2) clearly apprise the defendant of the facts constituting the offense in order to enable him to meet the charge, and (3) be specific enough to bar further prosecution for the same offense. United States v. Debrow, 346 U.S. 374, 376, 74 S.Ct. 113, 114-15[1-2], 98 L.Ed. 92, 96 (1953); State v. Garrett, 627 S.W.2d 635, 637 (Mo.banc 1982), cert. denied 459 U.S. 906, 103 S.Ct. 208, 74 L.Ed.2d 166 (1982); State v. Strickland, 609 S.W.2d 392, 395 (Mo.banc 1981).

There is no doubt that this information performs the first and third of these three essential functions. Section 195.020.1 in terms denounces "manufacture" of a controlled substance and by construction, requires knowledge of the nature and character of the controlled substance. State v. Netzer, 579 S.W.2d 170, 176 (Mo.App.1979). These elements were specifically pleaded; this is not a case like State v. Gilmore, 650 S.W.2d 627 (Mo.banc 1983), wherein one of the essential elements was omitted. We are aware of the rule that an information which fails to allege the elements of the crime charged cannot be validated by a bill of particulars, State v. Ladner, 613 S.W.2d 951, 952 (Mo.App.1981), but this information did charge the essential elements of the crime. As far as double jeopardy is concerned, the present rule is that the entire record of the proceedings, and not the information alone, may be looked to if there is a claim of double jeopardy, and this defendant required no additional specificity to protect him from double jeopardy. 1 C. Wright, Federal Practice and Procedure, Criminal 2d § 125, p. 365 (1982).

The only question here is whether the information sufficiently performed the second function--to apprise the defendant of the facts constituting the offense so as to enable him to meet the charge. We suppose it might have been better to add an averment "by cultivating and processing the said controlled substance," or words of similar import, but even so, we find no prejudice to the defendant. If it be conceded that the information failed to correctly apprise the defendant of the facts constituting the offense so as to enable him to meet the charge, the information nevertheless averred the essential elements of the offense. Therefore, the trial court acquired jurisdiction, because the information merely charged the defendant imperfectly. State v. Redpath, 668 S.W.2d 99, 101[1-3] (Mo.App.1984); State v. Newhart, 503 S.W.2d at 67. Defendant made no motion to dismiss, either before or after the trial. Before the information was...